## Facts

- First Lieutenant Christopher S. Schloff, a U.S. Army physician’s assistant, treated Sergeant CP during an appointment ostensibly related to a foot injury.
- During the appointment, Schloff touched CP’s breasts with a stethoscope while representing the contact as part of a medical examination.
- The government charged Schloff with abusive sexual contact under Article 120, UCMJ, alleging that he touched CP’s breasts by making a fraudulent representation that the contact served a professional purpose.
- A panel sitting as a general court-martial convicted Schloff of abusive sexual contact and adjudged a sentence that included a dismissal.
- Immediately after the panel returned findings, the military judge dismissed the charge and specification for failure to state an offense and set aside the conviction.
- The military judge reasoned that Article 120(g)(2)’s definition of “sexual contact” required touching accomplished by a part of the accused’s body, and that touching with a stethoscope (an object) did not qualify.
- The United States appealed the dismissal under Article 62, UCMJ, to the United States Army Court of Criminal Appeals (Army CCA).

## Issues

1. Whether “sexual contact” as defined in Article 120(g)(2), UCMJ, is limited to body-to-body touching, or also covers touching accomplished with an object.
2. Whether a specification alleging the accused touched the victim’s breasts with a stethoscope, by fraudulent representation that it served a professional purpose, states an offense of abusive sexual contact under Article 120, UCMJ.

## Decision

- The Army CCA reversed the military judge’s ruling dismissing the specification for failure to state an offense.
- The Army CCA held that Article 120(g)(2)’s definition of “sexual contact” includes object-to-body touching.
- The Army CCA vacated the dismissal and reinstated the charge and specification.

## Legal Principles

- Statutory interpretation begins with the text; when a statute defines prohibited “touching” of specified body parts and does not limit the means of touching, courts should not add a body-to-body requirement.
- In ordinary usage, “touching” can occur through contact made by an object; nothing in Article 120(g)(2)’s definition of “sexual contact” restricts touching to an accused’s body parts.
- Article 120(g)(2) focuses on the nature of the contact (the body part touched) and the required mental state; it does not make criminal liability turn on the instrument used to make contact.
- In assessing whether a specification states an offense, a military judge may not impose extra elements not found in the statutory text.

## Conclusion

The Army CCA held that Article 120(g)(2), UCMJ, is not limited to body-to-body touching and that “sexual contact” includes object-to-body touching; accordingly, a charge alleging breast touching with a stethoscope under a fraudulent claim of medical purpose states an offense, and the court reversed the military judge’s post-verdict dismissal and reinstated the abusive sexual contact specification.


United States v. Schloff, 2014 WL 7227689 (2014)